During the spring semester 2004 I directed a collaborative research project at the intersection of Law and Cultural Studies -- specifically, the domain of international intellectual property covered by copyright. The "collaboratory" consisted of three graduate assistants from English, Law, and Sociology, and nine advanced undergraduates majoring in arts, humanities, and social science departments at Case Western Reserve University. The aim of this project was to give undergraduates an opportunity to participate in basic research in the humanities in a collaborative work environment. Our joint efforts resulted in this website, which takes advantage of digital technology to expand and enhance my article, "Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge," co-authored with Peter Jaszi and published in Scientific Authorship: Credit and Responsibility in Science, ed. Mario Biagioli and Peter Galison (NY: Routledge, 2003).

An "author" in the modern sense is the creator
of unique literary, or artistic, "works" the
originality of which warrants their protection under
laws of intellectual property -- Anglo American "copyright"
and European "authors' rights." This notion
is so firmly established that it persists and flourishes
even in the face of contrary experience. Experience
tells us that our creative practices are largely derivative,
generally collective, and increasingly corporate and
collaborative. Yet we nevertheless tend to think of
genuine authorship as solitary and originary.

This individualistic construction of authorship is
a relatively recent invention, the result of a radical
reconceptualization of the creative process that culminated
less than two centuries ago in the heroic self-presentation
of Romantic
poets. In the view of poets from Herder and Goethe
to Wordsworth and Coleridge genuine authorship is originary
in the sense that it results not in a variation, an
imitation, or an adaptation, and certainly not in a
mere reproduction, but in a new, unique -- in a word,
"original" -- work which, accordingly, may
be said to be the property of its creator and to merit
the law's protection as such. (1)

With its emphasis on originality and self-declaring
creative genius, this notion of authorship has functioned
to marginalize or deny the work of many creative people:
women, non-Europeans, artists working in traditional
forms and genres, and individuals engaged in group or
collaborative projects, to name but a few. Exposure
of these exclusions -- the recovery of marginalized
creators and underappreciated forms of creative production
-- has been a central occupation of cultural studies
for several decades. But the same cannot be said for
the law. Our intellectual property law evolved alongside
of and to a surprising degree in conversation with Romantic
literary theory. At the center -- indeed, the linchpin
-- of Anglo-American copyright as well as of European
"authors' rights" is a thoroughly Romantic
conception of authorship.(2)
Romantic ideology has also been absorbed by other branches
of intellectual property law such as the law of patent
and trademark; and it informs the international intellectual
property regime. In patent it survives today both in
figurations of the inventor and in the emphasis, which
this body of law shares with copyright, on the "transformative"
moment in the creative process.

We suggested above that cultural production necessarily
draws upon previous creative accomplishments. For the
better part of human history this derivative aspect
of a new work was thought to contribute to, if not virtually
to constitute, its value. Writers, like other artisans,
considered their task to lie in the reworking of traditional
materials according to principles and techniques preserved
and handed down to them in rhetoric and poetics -- the
collective wisdom of their craft. In the event that
they chanced to go beyond the state of the art, their
innovation was ascribed to God, or later to Providence.
Similarly, in the sphere of science, invention and discovery
were viewed as essentially incremental -- the inevitable
outcome of a (collective) effort on the part of many
individuals applying inherited methods and principles
to the solution of shared problems.(3)

It was not until the eighteenth century, and then chiefly
in Western Europe, that an alternative vision of creative
activity focusing on the endowments and accomplishments
of the individual "genius" began to take shape.
In a sharp departure from the self-understanding of
writers of previous generations, authors in the new
Romantic mode viewed their task as one of transforming
the materials of personal sense experience through the
operation of their unique, individual genius. This change
of emphasis mystified the writing process, obscuring
the reliance of these writers on the work of others.
The notion that a technological or scientific breakthrough
owes its existence to the "genius" -- the
unique creative abilities -- of an individual inventor
seems to be even more recent. It appears to date only
to the third quarter of the nineteenth century. (4)
Borrowed from literary discourse, this notion similarly
obscures the collective or collaborative element in
scientific invention and discovery. Both misrepresentations
of creative activity appear to have fostered and been
fostered by modern intellectual property law. Like copyright,
modern patent emphasizes individual achievement -- chiefly
by rewarding the identification of a single genuinely
transformative moment in what in most places through
most of human history has been viewed as a collaborative
because incremental and continuous process.

As a consequence, this body of law tends to reward
certain producers and their creative productions while
devaluing others. Especially hard hit in this regard
is the creative production characteristic of developing
areas of the world. This North-South inequity in the
distribution of intellectual property is the subject
of the present essay. We aim, first, to bring attention
its scope and to the central role of the author/inventor
construct in sustaining it. We then turn in Part II
to review some of the most visible recent initiatives
to redress this inequity. Arguing that such initiatives
tend to get dispersed in the "force field"
of Romantic proprietorship, we explore in Part III some
other ways of thinking and talking about creative production
that could prove useful in the coming discussion of
an alternative legal order. (Yumbulul
v. Reserve Bank of Austraila
and Feist Publications v. Rural Telephone Service
Co represent 2 examples the notion of genius in
legal rhetoric.)

Consider, first, the way in which our laws of intellectual
property dispose of the cultural heritage -- including stories,
sounds, and images of
all kinds -- of peoples of the so-called developing world
as well as of indigenous groups within North American and
Western European societies. In 1992, the firm of Ferolito,
Vultaggio & Sons, known for its AriZona brand iced teas,
introduced a new high-alcohol beverage under the label "Original
Crazy Horse Malt Liquor." In addition to the name and
purported likeness of the revered Tasunke Witko, or Crazy
Horse, the label features a generic Indian in a head-dress,
a beadwork design, the sacred Lakota "medicine wheel"
symbol, and (on the verso) the text: "The Black Hills
of Dakota, steeped in the history of the American West, home
of Proud Indian Nations. A land where imagination conjures
up images of blue clad Pony Soldiers and magnificent Native
American Warriors. . . . A land where wailful winds whisper
of Sitting Bull, Crazy Horse, and Custer." When it appeared
in stores, the new "niche" beverage, packaged in
a large, whiskey-style bottle bearing this label, met resistance
from various Native American communities with which Tasunke
Witko had been associated. Throughout his life their revered
leader had opposed the introduction of alcohol into Indian
communities, they protested, and he had also forbidden the
representation or reproduction of his image.(5)
(This case was recently setteled,
for more information click here.)

Under our reigning national and international laws of intellectual
property traditional communities like the Lakota Sioux do
not have rights in their cultural heritage. Were copyright
to be recognized in the artwork that constitutes this heritage,
doctrines of "economic right" would enable these
communities to forbid its commercial exploitation, or to dictate
the terms and conditions under which exploitation could occur.
In most countries they would also enjoy a measure of additional
protection under parallel and independent doctrines of "moral
right," giving them (and their successors) legal authority
to prevent the misattribution or derogatory distortion of
their works -- even by those who have been authorized to exploit
the works economically. But in the absence of a "work
of authorship" none of these legal doctrines can apply.
(Although Crazy Horse has
won an important case the use of his image is still under
dispute.)

Traditional patterns and symbols like those reproduced by
Ferolito, Vultaggio & Sons are not "works of authorship"
because to qualify, a text must have been created by an identifiable
individual or individuals -- or a corporation acting as an
individual -- and must exhibit "originality," as
copyright doctrine terms the traces of new creativity that
are entailed by such a provenance. The source of the "medicine
wheel" and other symbols at issue in the collective culture
of the Sioux community precludes the identification of individual
"authors" and prevents them from qualifying as "original"
-- indeed, their cultural value resides in their fidelity
to, rather than any divergence from, the age-old symbols that
have been transmitted over generations within this community.(6)

From the point of view of intellectual property law, these
symbols reside in the "public domain," so in appropriating
them to market its new beverage Ferolito, Vultaggio &
Sons is legally within its rights. Even as the law offers
little or no aid to the indigenous community from which the
symbols have been extracted, it rewards such entrepreneurs
who "add value" by revising or recontextualizing
traditional imagery. Such marginal "value added"
constitues original authorship, justifying a copyright in
the resulting design as a so-called "derivative work."
In consequence, if another distributor of beverages were to
copy that design, Ferolito, Vultaggio & Sons could bring
suit for infringement of its copyright (to say nothing of
the additional trademark rights it enjoys above and beyond
copyright as a result of its commercial use of the symbols
represented on that label). By virtue of the emphasis it places
on innovation (however insignificant in quantity or quality),
intellectual property law thus not only fails to discourage
the appropriation of traditional culture, but actually rewards
and promotes it.

Consider the much publicized case of the rosy
periwinkle. This plant species was first harvested in
Madagascar for pharmaceutical use, and the two complex alkaloids
isolated from it (vinblastine and vincristine) now form the
basis of compounds used in anti-cancer chemotherapy. Formulations
of these active ingredients have proved particularly effective
against childhood leukemia and Hodgkin's disease and now earn
the Ely Lilly pharmaceutical company an estimated $100 million
a year.(10)
But while Lilly still harvests the periwinkle to produce these
medicines, it has left Madagascar behind.(11)
Lilly no longer relies on the island as the primary source
of this "raw material." The plant, which grows readily
in warm climates throughout the world, is now widely cultivated
in the Philippines and Texas. Carrying this process of alienation
one step further, in a trend that almost certainly represents
the future of drug development, France's Pierre Fabre Laboratories
has created an entirely synthetic version of one of the periwinkle-derived
alkaloids for the treatment of bronchial and breast cancers.(12)

However the drug is formulated, what has been appropriated
in the process of its development and commercialization is
not so much the botanical materials as something more abstract
and intangible: indigenous peoples' knowledge of the beneficial
properties of those materials. Such bioknowledge is exactly
the sort of commodity of the mind that intellectual property
law values and protects. As "useful" scientific
information it falls squarely within the domain of patent
law. Yet under patent doctrine it is not eligible for protection.
Why?

Much as copyright requires the agency of an individual creative
"author," so patent demands the agency of a personalized
"inventor" whose genius produces innovations that
surpass the "prior art" by virtue of their "novelty."
Through his or her efforts, the inventor transforms known
preexistent raw materials -- as traditional bioknowledge would
be figured in patent discourse -- into something useful and
new. Thus, the people of Madagascar, the custodians of the
crucial knowledge of the periwinkle's curative properties,
do not count as inventors under patent doctrine any more than
do the Lakota Sioux as "authors," and they are not
eligible for patent protection. Protection goes rather to
the entrepreneurial pharmaceutical, Ely Lilly, which, having
relied on their knowlege to identify the promise of the periwinkle,
has gone on to engineer its active chemical ingredients so
as to "improve" it for commercial application. Such
improvements, although marginal, qualify Lilly as an "inventor,"
justifying the award of a patent. The availability of such
patent protection is what makes it possible for the company
to reap profits of so large a scale.

The people of Madagascar, meanwhile, have received nothing
of significance in exchange for their knowledge -- not even
an assured income from the sale of the plants themselves.
The[se] desperately poor islanders are thus rapidly deforesting
their country to gain arable land on which to grow subsistence
and market crops. Today, less than 20 percent of Madagascar's
original forest cover remains. And although ethnobotanical
teams of African scientists and students are hurrying to record
popular knowledge about the curative properties of other plants,
it seems inevitable that much of this lore will be lost with
the island's biodiversity.

Herein lies a further disadvantage of the present intellectual
property regime. The developing areas of the world in which
most of the as yet untapped plant species are most prevalent,
the great tropical forests, are typically also the poorest.
With few available sources of income, not even from their
valuable bioknowledge -- profits from which go to the Northern
drug companies -- the peoples in these areas of the world
have no choice but to consume their heritage in an effort
to survive. When this occurs, we all lose -- peoples of the
developed and developing world alike. For with the disappearance
of the great forests, popular knowledge of the curative properties
of their diverse flora -- their crucial biolore -- will rapidly
disappear as well, leaving the drug companies to prospect
randomly in what remains of nature -- a scenario that is not
financially feasible.

Such nonoptimal outcomes are the product of our intellectual
property regime, and more particularly, of the conception
of creative production that lies at its center. This body
of law figures creative production as essentially individual
and originary. Accordingly, it views the critical creative
moment in both of these examples to lie in the transformative
activity of the two entrepreneurs -- Ferolito Vultaggio &
Sons, and Ely Lilly. Having been handed down by tradition,
the designs, images, and lore on which these companies operate
lack an identifiable "author" or "inventor."
Intellectual property law thus regards them as naturally occurring
raw materials which lie available to all for the taking. Not
in themselves the locus of value, they acquire value through
the creative activity of the entrepreneurs who transform them
into beverage brands and internationally marketable drugs.

There have been a number of efforts to address this problem
over the past three decades. Here we will review only a few
of the most visible and suggest why they have foundered. Until
recently the primary focus of such efforts has been traditional
cultural heritage. Thinking about recognizing legal rights
in the scientific heritage of indigenous peoples is, by contrast,
still in a very early stage.

An early, tentative effort to address the dilemma of indigenous
intellectual property may be seen in the Act of the Berne
Convention for the Protection of Literary and Artistic Works
(1971). While protection of so-called "folkloric"
works -- i.e., "traditional creations of a community
such as the so-called folk tales, folk songs, folk music,
folk dances, [and] folk designs or patterns" (13)--
is not mandated by the treaty, Article 15(4)(a) does give
countries bound by the Berne
Convention the option of adopting local legislation to
afford protection "in the case of unpublished works where
the identity of the author is unknown, but where there is
every ground to presume that he is a national of a country
of the Union . . . ." Where it might be extended, therefore,
such protection would be available only on the basis of the
legal fiction that the work is in fact the creation of one
or more "unknown" (but otherwise qualifying) individual
authors.

At the most practical level, the difficulty with this invitation
to shoehorn traditional culture into national law lies in
the potential for resistance in the core copyright concepts
which are not addressed in the provision. Though the idea
of authorship may bend a little, it will not bend much, with
the result that most of the content of traditional culture
would fail to qualify (by virtue of its lack of "originality")
even under the fictionalized standard of Article 15(4)(a).
It is difficult to imagine, for example, how the fiction could
accomodate the Lakota "medicine wheel." In fact,
Article 15(4)(a) does not appear to have inspired any domestic
legislation. Nevertheless, its general approach to the problem
of inserting traditional culture into the scheme of copyright,
and the shortcomings of that approach, are reflected in subsequent
proposals to extend intellectual property protection to traditional
cultural heritage.

The misfit between copyright and the forms of creative production
that are most characteristic of peoples of the developing
world found explicit international acknowledgement in 1982,
which saw adoption by the World Intellectual Property Organization
(WIPO) and UNESCO of a set of recommended "Model Provisions
for National Laws on the Protection of Expressions of Folklore
Against Illicit Exploitation and Other Prejudicial Actions."
The "expressions of folklore" to which the Model
Provisions were designed to apply include "productions
consisting of characteristic elements of traditional artistic
heritage developed and maintained by a community . . . or
by individuals reflecting the traditional artistic expectations
of such a community." The terms of the Model Provisions
would penalize unauthorized economic exploitation of such
materials outside the traditional or customary context, and
against what might be thought of as "moral rights"
offenses -- e.g., false attribution, or the kind of derogatory
distortion of materials drawn from folkloric tradition. The
right to enforce these prohibitions might be allocated differently
in different national implementations of the provisions --
in some to the communities that are the custodians of a tradition,
and in others to a state agency or state-designated "competent
authority."(14)

Unfortunately, however, there has been relatively little
significant implementation of the WIPO-UNESCO Model Provisions.(15)
The reason, we suspect, is that despite the drafters' recognition
that copyright cannot easily be applied to protect traditional
cultural materials, the "sui generis" approach of
the Model Provisions does not really go far -- or at least
not far enough -- to escape the "force field" of
copyright. Although the Model Provisions do not employ the
terminology of copyright discourse -- terms such as "author,"
"work," and "originality" -- they preserve
the general structure of copyright doctrine, with its conventional
subdivisions of "economic" and "moral"
rights. The Model Provisions focus exclusively on the thing
itself -- the "expression of folklore" -- and by
necessary implication on protection of the creative investments
that went into its production, rather than on preservation
of the cultural processes that gave rise to it and the values
it expresses. Although the "author function" of
conventional copyright discourse is displaced onto representatives
of the community, or a designated "competent authority,"
it is still recognizable as such. So while the Model Provisions
incorporate more sophisticated insights into the nature of
the problem of providing appropriate legal protection for
traditional cultural materials than does Article 15(4)(a)
of the Berne Convention, they ultimately stumble on the same
obstacle.

To turn to efforts to craft protection for the scientific
heritage -- the bioknowledge -- of indigenous peoples, there
has been a recent, if tentative, initiative of significance
at the international level: the United Nations Convention
on Biological Diversity, concluded at the Earth Summit in
Rio de Janeiro in 1992. Article 8(j) of the treaty mandates
signatories to take measures to "respect, preserve and
maintain knowledge, innovations, and practices of indigenous
and local communities embodying traditional lifestyles relevant
for the conservation and sustainable use of biological diversity,"
and requires governments to assure that such knowledges are
used with the approval of the communities in question, and
consistent with the principle of "equitable sharing of
the benefits" resulting from their use. Whether and how
these principles will be implemented, and what role intellectual
property rights may play in that implementation, remains to
be seen. Clearly, however, they need not be implemented through
the adaptation of existing intellectual property rights or
by the articulation of new ones. Thus, in the very tentativeness
of its approach, which opens a space for the development of
new non-intellectual property-based legal mechanisms, the
Biodiversity Convention arguably represents an advance over
earlier efforts to protect traditional cultural and scientific
heritage by incorporating it into Eurocentric models of rights
in intangibles -- especially when we compare it to the provisions
of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) which constituted Annex
IC of the Marrakesh Agreement Establishing the World Trade
Organization, concluded in April 1994. TRIPS binds signatory
nations to provide enhanced protection for pharmaceutical
and chemical innovations of companies that exploit traditional
bioknowledge, but it contains no imperative for the protection
of that bioknowledge itself. Specifically, Article 27(1) of
TRIPS requires protection for inventions "without discrimination
as to the . . . field of technology," a reference designed
to assure (among other things) that nations which did not
protect pharmaceuticals by patent would be required to do
so.(16)
But because traditional bioknowledge is not "new"
and does not "involve an inventive step," it falls
outside the category of mandatory patent subject matter that
TRIPS Article 27(1) defines. In addition, TRIPS Article 27(3)
requires the protection of "plant varieties either by
patents or by an effective sui generis system or by any combination
thereof." In other words, national laws must provide
for Western-style intellectual property protection, premised
on "innovation," in new versions or adaptations
of naturally occurring plant species -- a mandate which leaves
no space for the protection of traditional bioknowledge.(17)
Herein lies the key to the difference between the approach
of TRIPS and that of the Biodiversity Convention. As one South
African commentator has put it, the TRIPS agreement "sees
knowledge as belonging to the public domain [and] views Indigenous
Knowledge in terms of Intellectual Property which should be
protected within the Intellectual Property Rights regime,
based on Western notions of individual ownership. The [Biodiversity
Convention] on the other hand, focuses on communal ownership.
Accordingly, knowledge is viewed as being owned by the local
community in whose customs, practices and traditions it is
embedded."(18)
Increasingly, activists in the cause of promoting biodiversity
through the protection of traditional knowledge have come
to view TRIPS as not merely irrelevant to their objectives
but potentially inimical. One recent commentary, for example,
asserts that by requiring "life patents" and plant
variety protection, TRIPS overrides two basic assumptions
of the Biodiversity Convention: "that intellectual property
is a matter of national sovereignty and policy, and that life
forms are part of the public domain," because "biodiversity
represents a cultural and ecological heritage developed over
generations and upon which our collective survival depends.
Subjecting this heritage to a legal regime of commercial monopoly
rights under TRIPS will destroy the conditions for its conservation
and sustainable use, especially by the communities, and thereby
destroy society's access to diverse food and medicine."(19)

Due in part to the impetus of the Biodiversity Convention,
a reconsideration of approaches to the legal protection of
indigenous knowledges and traditional cultural materials is
underway. Academic literature on the topic is proliferating,(20)
and WIPO has created a new Global Intellectual Property Issues
Division, whose charge includes promoting intellectual property
rights for "new beneficiaries," and whose jurisdiction
cuts across the traditional categories of "expressions
of folklore" and "bioknowledge." Notably, representatives
of the peoples and communities who are the custodians of such
bodies of cultural heritage are directly involved in the discussion
-- both at the invitation of international organizations and
as the result of their own initiatives. An outstanding example
is the Mataatua Declaration of the First International Conference
on Cultural and Intellectual Property Rights of Indigenous
Peoples, drawn up by an assembly of over 150 delegates from
fourteen countries meeting in New Zealand in June 1993. The
declaration includes the statement that "indigenous peoples
are the exclusive guardians of their knowledge," and
as such must be the ones to define it, must be first beneficiaries
of it, must be respected for their right to create new knowledge
or discover new aspects of traditional knowledge, and must
be the ones to decide whether to protect, promote, or develop
their knowledge.

Yet another factor contributing to the present sense of urgency
surrounding issues of indigenous knowledge and cultural heritage
is the coincidence of the fiftieth anniversary of the Universal
Declaration of Human Rights. Article 27.2 of the Declaration
affirms the right of every person to "protection of the
moral and material interests resulting from any scientific,
literary or artistic production of which he is the author."
The inadequacy of this formulation -- which may also be found
in Article 15.1 of the International Covenant of Economic,
Social and Cultural Rights -- will be immediately apparent:
it constructs creative activity individualistically, placing
the creative production most typical of indigenous peoples
squarely outside the scope of the Declaration.(21)

Finally, we would call attention to a fortuituous geopolitical
coincidence that has probably done more than any other recent
development to put the issue of legal protection for traditional
knowledges and cultural materials on the world agenda and
create a real possibility that, sometime within the next five
years, a new international treaty addressing rights in cultural
heritage may be concluded. This was the procedural linkage
of this issue with a substantively unrelated issue -- that
of protection for databases -- that occurred at the December
1996 WIPO Diplomatic Conference in Geneva, Switzerland.

The agenda of the Diplomatic Conference called for the delegates
of the 127 nations represented in the WIPO to consider three
draft treaties. Two of these, dealing primarily with issues
of copyright and neighboring rights in the digital environment,
were concluded and signed: the WIPO Copyright Treaty and Treaty
on Protection of the Rights of Performers and Producers of
Phonograms. The third, a proposed agreement on Rights in Collections
of Information, which had been injected into the agenda at
the last moment by the U.S. and the European Union on behalf
of their domestic database industries, was not. This initiative
met the resistance of delegates of developing nations who
perceived that it would mandate new international and domestic
sui generis protection for data compilations which, consisting
of non-original facts, have always fallen, by definition,
outside the scope of conventional copyright law. In denouncing
the initiative, they pointed out that the problem of securing
effective protection for traditional cultural materials and
knowledges had been under international discussion, without
significant progress, for a generation, notwithstanding its
importance to developing peoples and nations. Why, they asked,
should the conceptually equivalent problem of data rights,
in which the developed nations have the chief stake, receive
priority?

The Diplomatic Conference concluded without reaching agreement
on the merits of the proposed database treaty, but a procedure
and general timetable were established for study and resolution
of the issues it raised, and an equivalent procedure was mandated
for advancing progress on issues related to the protection
of indigenous knowledges and traditional cultural materials.
This has already led to the convening of the UNESCO-WIPO World
Forum on the Protection of Folklore at Phuket, Thailand in
April 1997 and the WIPO Roundtable on Intellectual Property
and Indigenous Peoples, held in Geneva in July 1998. Having
gotten linked to progress toward an international agreement
on something as important to the information industries of
the developed world as database protection, some kind of treaty
protecting the characteristic creative productions of traditional
communities, including those in developing countries, now
seems likely.

What exactly must such a treaty achieve? There seems to
be substantial consensus: Most participants in the discussion
agree that what is needed is balance, or, in the memorable
phrase of Hong Yongping, a Chinese presenter at the 1997 WIPO
Forum, rules assuring "effective protection with reasonable
use"(22)
-- a scheme of protection that simultaneously reflects the
special cultural concerns of indigenous peoples and other
custodians of traditional knowledge and at the same time permits
continued utilization of their works on reasonable terms as
the basis of new cultural productions, pharmaceuticals, crop
varieties, and the like. There is also widespread acceptance
that any scheme of protection should respond to the principle
of "fair sharing of benefits" articulated in the
Biodiversity Treaty. The question is how to accomplish such
balance between control and access, while assuring equitable
distribution of the fruits of exploitation. The terms of the
coming discussion -- the dominant metaphors and tropes around
which it will be organized -- are crucial.

In the past, public discussion about control over and access
to productions of the mind has been "personalized"
around such metaphorical figures as the author and the inventor.
But the figure of the individual creative genius cannot be
used to structure discussion about legal rights in traditional
knowledges. Still, metaphorization of the discussion seems
inevitable, so the choice of an organizing trope matters.
Already, a battle for discursive dominance is underway between
two, diametrically opposed, alternatives drawn from the realm
of economic discourse: the notion that "information wants
to be free" and the opposing notion of the "tragedy
of the commons." The two tropes have a common starting
point in their characterization of traditional knowledge prior
to legal intervention, as a "public good" -- a commodity
that is not fenced off by any barriers to impede public access
and use. For the purpose of both tropes, the original state
of this information is figured as a version of the "commons."
The tropes part company in the conclusions they draw from
this characterization.

The notion that "information wants to be free,"
familiar to those who read in the history of copyright, has
been given a new lease on life by the spread of electronic
communication. John Perry Barlow appeals to it when he urges
that the Internet be left alone -- unregulated.(23)
Barlow, and other commentators who deploy this essentializing
trope make the further claim that, especially in the electronic
environment, attempts to regulate information are not only
unavailing but threaten the good information order. "[T]he
increasing difficulty of enforcing existing . . . laws,"
he writes, "is already placing in peril the ultimate
source of intellectual property -- the free exchange of ideas."(24)

This way of figuring the nature of information is generally
associated with progressive positions on issues relating to
the legal status of traditional knowlege. In her recent book,
Biopiracy: The Plunder of Nature and Knowledge, Vandana Shiva
invokes the "free" character of genetic information
to denounce Western efforts to reduce traditional knowledge
to ownership through the patenting of new derivative pharmaceuticals
and plant varieties: "Biotechnology, as the handmaiden
of capital in the post-industrial era," she writes, "makes
it possible to colonize and control that which is autonomous,
free, and self- regenerative."(25)
The same position was expressed in the much publicized controversy
surrounding W. R. Grace's patenting of a pesticide made of
ground Neem seeds which critics claim has been used in India
for centuries. "The real battle," Jeremy Rifkin,
who spearheaded a challenge of the patent, is quoted in the
New York Times as saying, "is whether the genetic resources
of the planet will be maintained as a shared commons or whether
this common inheritance will be commercially enclosed and
become the intellectual property of a few big corporations."(26)

However, transnational corporations and governments acting
on their behalf also mobilize the trope of "free"
information to some effect. A particularly notorious example
was the April 14, 1992 memorandum from Vice-Presidential staff
members John Cohrssen and David McIntosh to Dan Quayle's Chief
of Staff Bill Kristol, written "to alert [Kristol] to
serious problems with the draft international convention on
biological diversity." In pertinent part, the memo --
which played a significant role in delaying U.S. signing of
the treaty -- claimed that under the treaty:

Special legislation would need to be passed for the
benefit of indigenous populations, i.e., American Indians,
since the draft convention has special provisions for
them [and]

It would greatly increase litigation because of new compensation
legislation [that] would need to be passed[,] as the draft
treaty contains a vaguely worded provision to establish
liability and a right to compensation for damage to biodiversity.

The draft convention proposes to regulate biotechnology,
in a manner totally unacceptable to the US: to restrict
domestic and international commerce in biotechnology related
products . . . . (27)

This text is a powerful invocation of the trope of inherently,
essentially, naturally "free" information. But it
mobilizes that trope to purposes dramatically different from
those of Shiva and Rifkin -- to argue that any interference
with the ability of U.S. companies to exploit indigenous bioknowledge
represents an unacceptable departure from the status quo.

This bivalent trope clearly has limitations, then, as an
organizing structure around which to build discussion about
future legal regulation of access to traditional knowledge.
Not the least of the trope's limitations is that discussion
organized around it will not escape the "force field"
of the author/inventor figure that has long exerted such a
powerful influence over discussion of rights in information.
To figure information -- including traditional knowledge --
as not having been created by anyone at all and thus not susceptible
of ownership is simply to invert the trope of authorship.

The notion that information is "free," a "public
good" like air and water, which one ought to be able
to draw upon at will, also gives rise to a powerful counter-
metaphor, the so-called "tragedy of the commons"
-- invoked to justify reducing commonly owned (or unowned)
things to the status of property. The trope became popular
in environmental literature during the 1960s, where it was
argued that since one only takes care of things one owns,
resources held in common -- unowned and unprotected by anyone
-- are (inexorably) doomed to be over-exploited.(28)
Although the utility of the "tragedy of the commons"
metaphor has been extensively questioned in scientific and
economic literature,(29)
it appears to be achieving new currency in the law -- including
intellectual property law -- where it functions as an easy-to-grasp
and poignant shorthand for the larger neoclassical economic
principle that, to quote Neil Netanel, "private entitlements
can best promote allocative efficiency when would-be users
must pay the price agreed upon by the entitlement holder in
a voluntary exchange."(30)

Like its mirror image, the trope of "free" information,
this trope too is bivalent. Just recently it was successfully
invoked by large corporate copyright owners to argue for a
twenty year extension of the term of copyright -- the Sonny
Bono Copyright Term Extension Act of 1998. In the congressional
testimony of Disney, Time-Warner, etc. the "public domain"
-- a commons resulting from the expiration of limited terms
of protection in copyrighted works -- was consistently figured
as a kind of informational dumping ground, littered with abandoned
movies, songs, and the like that, because no owner had an
economic motivation to bring them to market, were in practice
unavailable for public use.(31)
Yet the trope is also being mobilized in defense of what might
be viewed as progressive objectives. Thus, one writer has
recently invoked it to argue for new legal norms to promote
the preservation of cultural heritage by discouraging the
black market in stolen artifacts.(32)
More emphatically -- and more controversially -- Joseph Henry
Vogel has argued from the "tragedy of the commons"
that the best hope for the preservation of biodiversity lies
in the creation of a comprehensive scheme of intellectual
property rights, modelled on existing patent and copyright
regimes, in "genetic information." However, his
advocacy of this market model gives cause for suspicion. Among
his "Ten Principles for Conserving Genetic Information"
is this one: "Endorse legislation giving equal protection
to artifical and natural information [and] at the same time
attenuate the ability to alienate the new property rights"(33)
-- that is, endow indigenous communities with rights in their
bioknowledge, but restrict their freedom to commercialize
their new property. This extraordinary qualification reflects
Vogel's doubt that indigenous peoples will be able to enact
their part as rational profit maximizers in his scheme of
conservation-by-priviatization, and indeed his doubt may be
well placed. The relationship of the bearers of cultural traditions
to their traditions is surely more complex.

Conceptually, this bivalent trope of the"tragedy of
the commons" does not escape the gravitational pull of
"possessive individualism" any more than the competing
argument to the effect that "information wants to be
free." In the mode of analysis associated with the "tradgedy
of the commons," effective social ordering is closely
linked to property ownership. In this discourse one of the
primary characteristics of the property owner is that his
or her relationship to the thing owned is rooted in self-interest.
The person in whom rights are vested in an effort to avoid
over-exploitation of a resource is presumed to be motivated
to put that resource to its best and highest use -- in order
to maximize benefits and minimize costs to him- or herself.
Similarly, by virtue of his or her creative investment, the
"author" of copyright law -- the exemplary "possessive
individual" -- is literally responsible for a work, both
reaping the benefits of its exploitation and bearing the associated
costs (such as the risk of censure or prosecution).(34)

Arguments for protection of the environment through the
privatization of "genetic information" ignore the
possibility that factors other than immediate self-interest
may shape the relationship of indigenous peoples to their
intangible heritage. While emphasizing how indigenous groups
may promote the conservation of nature as rights holders bargaining
with prospective users in a transactional marketplace, such
arguments fail to recognize the importance of these groups'
role as the custodians, for the time being, of living traditions.
By denying these custodial interests, which escape the market,
reliance on the pro-enclosure "tragedy of the commons"
metaphor as an organizing trope would seriously distort the
coming discussion of new rights regimes for the protection
of traditional culture and bioknowledge. Just as inevitably,
it would focus attention on the cultural or informational
objects to be protected, and away from the processes which
produce or sustain them.

We conclude by sketching the outlines of an alternative
metaphor for organizing discussion of future law governing
access to traditional knowledge and cultural heritage -- that
of "sustainable
development," familiar from the environmental literature
of the last three decades. Simply put, this notion addresses
the observation that the environment cannot sustain the current
pace and manner of economic expansion, that this pattern of
development is, in a word, "unsustainable." But
it does not address this problem of environmental degradation
by prioritizing environmental protection pure and simply;
rather, acknowledging the continuing need for development
-- for industrialization of impoverished parts of the world
especially -- it urges instead the "balanced" approach
captured in the notion of "sustainable development":
a"process of change," to quote from Our Common Future,
the 1987 report of the World Commission on Environment and
Development that first brought global attention to the idea,
"in which the exploitation of resources, the direction
of investments, the orientation of technological development,
and institutional change are all in harmony and enhance both
current and future potential to meet human needs and aspirations"(35)

Since the appearance of this report there has emerged a
substantial body of interdisciplinary literature devoted to
defining and developing political, economic, and legal instruments
to achieve this goal of continued, but "sustainable"
development. The notion vaulted into prominence, however,
at the Rio summit that led to the United Nations Convention
on Biological Diversity -- because it seemed a useful vehicle
for harmonizing North - South political differences.

How might interdisciplinary conversation about the development
of norms and practices for the protection of traditional knowledge
and cultural heritage be advanced by adopting "cultural
sustainability" as the organizing metaphor? What advantages
does this trope have over "authorship" (and other
cognate concepts) around which intellectual property law historically
has been organized? And why might it be a more fruitful basis
for discussion than either "free information" or
the "tragedy of the commons," the new economic tropes
that we have identified as false alternatives to "authorship"
as controlling metaphors, ineffective precisely because they
fail to escape the gravitational pull of the "authorship"
concept itself?

However tentatively, we would suggest that a discussion
refracted in terms of "cultural sustainability"
might succeed -- where one organized by means of other metaphors
ultimately would fail -- in transcending the near-exclusive
emphasis on the nexus between the maker and the specific products
of his or her creative efforts that dominates conventional
intellectual property discourse. As we have argued, that discourse
is marked by a strong individualistic emphasis, which makes
it difficult to think and talk clearly about instances in
which cultural work is carried forward by or within groups.
Just as characteristically, intellectual property law thinking
tends to approach issues of cultural policy by defining issues
and solutions in terms of" "things" to be (or
not to be) protected; in doing so it risks missing what is
both most valuable to, and most valuable about, the cultural
work of indigenous communities: the means by which their custodianship
over various cultural objects and bodies of information is
carried forward. Thus, for example, the larger question raised
by the case of the rosy periwinkle is not how the bearers
of a specific item of knowledge about the properties of a
specific plant might have been afforded some economic return
in connection with its exploitation, but what measures would
have been necessary to maintain the systems within which that
item of knowledge and others like it were preserved, to assure
their continued availability to the human community at large.

Adoption of the metaphor of "cultural sustainability"
would represent an acknowledgment that maintenance of traditional
knowledge systems within living communities should be the
first-order goal of any new legal initiatives to safeguard
traditional culture, and that, compelling as are "equity
arguments" for compensation to indigenous peoples whose
knowledge is commercialized, such compensation is only a means
-- and only one means -- by which to accomplish that goal;
in some situations, it will be better served by affording
greater rights to traditional communities, endowing them (for
example) with the absolute authority to withhold sacred knowledge
from the marketplace. By the same token, however, because
(like other invocations of the "sustainability"
concept) "cultural sustainability" is premised on
balancing the need to use resources with the need to assure
their continued availability, the metaphor also inherently
recognizes the potential risk of overrprotection: a potential
rights regime which gave traditional communities the ability
to bar dissemination of the proverbial botanical AIDS cure
would be subject to criticism within the discursive framework
established by adopting the proposed metaphor. Indeed, as
we have suggested, the central tension in the policy discussion
concerning indigenous cultural rights -- as with that relating
to any system of knowledge regulation -- is between the impulse
toward "control" and the impulse toward "access."
Unlike other available metaphors, "sustainability"
has the important advantage of containing a "built-in"
recognition of both of these conflicting impulses.

Specifically, a "sustainability"-based approach
might help everyone engaged in the discussion of initiatives
to safeguard traditional culture to:

Recognize more fully the critical custodial role that
indigenous peoples play in maintaining valuable traditions
and bodies of knowledge, and acknowledge the ways in which
that complex role differs from one of conventional "ownership"
or "proprietorship";

Ask and answer questions about how a wide range of possible
social or legal policies (including, but not limited to,
new rights regimes) might encourage desirable forms of
collective social behavior in relation to traditional
knowledge and cultural heritage;

Refocus attention in connection with legal measures and
initiatives away from the consideration of individual
entitlements, and towards an accounting of the cultural
requirements of particular traditional communities;

Avoid the unfruitful binary of "ownership - no ownership"
in considering whether (and if so, what) regulation of
the use of traditional knowledge and cultural heritage
may be appropriate;

Take into account the collective interests of re-users
and consumers of information, both outside traditional
communities and within them.

A discussion conducted in terms of "cultural sustainability"
would be appropriate to the consideration of new rights regimes,
such as the proposals for "Community Intellectual Rights"
(CIR) which were first proposed by the Third World Network
in 1994 and now are gaining currency in Latin America and
parts of Africa.(36)
Likewise, it could guide further discussions of initiatives
to mobilize the content of existing legal regimes (including,
but not limited to those of intellectual property) into "bundles
of rights" which could be deployed by traditional communities
to protect their knowledge -- the
so-called "Traditional Resource Rights" (TRR) approach.(37)

Moreover, the lens of "cultural sustainability"
could be profitably employed to examine proposals and projects
to address the gaps in national and international legal safeguards
for traditional culture through private legal ordering, such
as the well-publicized 1992 agreement between Costa Rica's
National Institute of Biodiversity (INBio) and the Merck pharmaceutical
company.(38)
Likewise, it could be applied in assessing the benefit-sharing
approach adopted in the mid-1990's by the Shaman Pharmaceuticals
firm,(39)
or the more recently-announced contract between an Indian
government research institute and a local traditional community
to share the benefits of a medicine based on the active ingredient
of a plant to which its members directed research scientists.(40)

In addition, and perhaps most importantly, any discussion
of the future of legal measures to safeguard traditional heritage
conducted in terms of the metaphor of "cultural sustainability"
would, by its nature, be one in which traditional communities
and their representatives would be full participants. Only
through the fullest possible consultation will it be possible
for policy-makers to determine what legal measures actually
will function to help maintain the processes by which culture
is conserved, transmitted, and elaborated within those communities
-- as any inquiry based on "cultural sustainability"
requires. Perhaps because conventional intellectual property
rights constitute part of the conventional framework of Western
law, legal experts in developed countries have long been ready
to prescribe intellectual property rights-based approaches
to traditional culture and traditional science. Not surprisingly,
as we have detailed above, these proposals have been largely
ineffective. Increasingly, however, traditional communities
are finding their own voices. The deep logic of "cultural
sustainability" would help to reinforce their demands
to be heard.

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